Reese v. Warden, FCI Sandstone

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
GORDON DAVID REESE,
Petitioner,
v.
WARDEN, FCI SANDSTONE,
Respondent.
Case No. 24-cv-4341 (LMP/DLM)
ORDER ADOPTING
REPORT AND
RECOMMENDATION
Gordon David Reese, pro se.
Ana H. Voss and Trevor Brown, United States Attorney’s Office, Minneapolis, MN, for
Respondent.
Petitioner Gordon David Reese filed a petition for a writ of habeas corpus, ECF
No. 1, challenging a determination by the Bureau of Prisons (“BOP”) that he is ineligible
to earn First Step Act (“FSA”) time credits (“FTCs”), see ECF No. 3 at 1. 	On
November 10, 2025, United States Magistrate Judge Douglas L. Micko issued a Report
and Recommendation (“R&R”) concluding that Reese’s Petition should be denied. 	ECF
No. 23 at 4–7. 	Reese objects to the R&R on various grounds, ECF No. 26, so the Court
reviews de novo the portions of the R&R to which Reese properly objects, Fed. R. Civ.
P. 72(b)(3). For the reasons discussed below, the Court overrules Reese’s objections and
adopts the R&R in its entirety.
FACTUAL BACKGROUND
In 2006, Reese was convicted of five drug, firearm, and assault charges: conspiracy
to distribute or possess with intent to distribute methamphetamine, in violation of 21 U.S.C.
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§§ 841(a)(1), 841(b)(1)(B), and 846 (Count 1); possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count 2);
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1) (Count 3); being an armed career criminal in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (Count 4); and assault resulting in bodily
injury, in violation of 18 U.S.C. § 113(a)(4) (Count 5). ECF No. 9 ¶ 3; ECF No. 9-1. Reese
was originally sentenced to serve a total term of incarceration of 363 months: 303 months
for Counts 1, 2, and 4,1 to be served concurrently; 6 months for Count 5, to be served
concurrently; and 60 months for Count 3, to be served consecutively. ECF No. 9 ¶ 4. At
the time he filed the Petition, Reese was serving his sentence at the Federal Correctional
Institution in Sandstone, Minnesota,2 id. ¶ 2, and currently is projected to be released on
September 20, 2031, id. ¶ 5.
Under the FSA, federal prisoners who successfully complete recidivism reduction
programs may be eligible to earn FTCs, which are applied to the prisoner’s sentence and
entitle the prisoner to early transfer to prerelease custody or supervised release. 18 U.S.C.
§ 3632(d)(4)(A)–(C). Prisoners serving sentences for certain crimes are ineligible to earn
FTCs, however, including those with convictions under 18 U.S.C. § 924(c) “relating to
unlawful possession or use of a firearm during and in relation to any crime of violence or
drug trafficking crime.” 	Id. § 3632(d)(4)(D)(xxii). 	The BOP determined that because
1 	Reese was later resentenced to serve 120 months for Count 4. ECF No. 9 ¶ 4.
2 	During the pendency of these proceedings, Reese was transferred to Federal
Correctional Institution in Thomson, Illinois. See ECF No. 17.
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Reese’s sentence for his conviction under 18 U.S.C. § 924(c)(1) was aggregated with his
sentences for the remaining charges, Reese is ineligible to earn FTCs on his entire
aggregated term of imprisonment. ECF No. 9 ¶ 7.
PROCEDURAL BACKGROUND
Reese filed his Petition on December 2, 2024, challenging the BOP’s determination
that he is ineligible to earn FTCs and, alternatively, asserting that he should be eligible to
earn FTCs “with respect to his drug sentence.” ECF No. 1 at 8. Magistrate Judge Micko
issued the R&R on November 10, 2025, concluding that the BOP’s determination is correct
and recommending that Reese’s Petition be dismissed. 	See ECF No. 23 at 4–7. 	Reese
timely filed objections. 	ECF No. 26; see also ECF No. 25. 	The Government timely
responded to Reese’s objections. ECF No. 27.
STANDARD OF REVIEW
Under Rule 72 of the Federal Rules of Civil Procedure, a district judge “must
determine de novo any part of [a] magistrate judge’s disposition that has been properly
objected to,” and the district judge “may accept, reject, or modify” the magistrate judge’s
recommended disposition. Fed. R. Civ. P. 72(b)(3); see 28 U.S.C. § 636(b)(1)(C). Absent
specific objections, the district judge reviews the magistrate judge’s recommendation for
clear error. 	Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996). A district court must
liberally interpret a pro se party’s objections to a magistrate judge’s order. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007).
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ANALYSIS
Reese contends that the “R&R fails to confront the core issues presented” in his
Petition and “misapplies control[l]ing law.” 	ECF No. 26 at 1. 	He raises several
overlapping objections that largely center on the same purported error in the R&R: that
Magistrate Judge Micko did not properly consider his argument that the rule of lenity
“controls the interpretation” of the relevant statutes underlying the BOP’s determination
and the R&R’s conclusion. See id. at 1–7. He also argues that the R&R incorrectly rejected
his Fifth Amendment Due Process arguments because it “relies solely on liberty-interest
analysis” 	which, 	Reese 	contends, 	has 	never 	been 	“extended 	to 	Fifth Amendment
challenges” by the Eighth Circuit. Id. at 6. Reese’s objections are unavailing.
I. 	Rule of Lenity
The rule of lenity is a canon of statutory construction which “states that ambiguities
in criminal statutes should be resolved in favor of the defendant.” United States v. Buford,
54 F.4th 1066, 1068 (8th Cir. 2022). 	Courts rely on the rule of lenity only when, “after
employing all other tools of construction, ‘a grievous ambiguity or uncertainty in the
statute’ remains.” Id. (quoting Donnell v. United States, 765 F.3d 817, 820 (8th Cir. 2014)).
Reese argues that 18 U.S.C. §§ 3584(c) and 3632(d)(4)(D)—the statutes underlying
the R&R’s conclusion—must be construed in his favor because they are ambiguous as to
whether a prisoner serving a term of imprisonment for multiple convictions, not all of
which render the prisoner ineligible to earn FTCs, is barred from earning FTCs for the
entirety of his term or only as to the portion relating to his ineligible convictions. See ECF
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No. 26 at 2–4. But there is no ambiguity in the statutes, and thus there is no basis to invoke
the rule of lenity.
First, 18 U.S.C. § 3632(d)(4)(D)(xxii) clearly states that a prisoner “is ineligible to
receive time credits” under the FSA if he “is serving a sentence for a conviction under”
18 U.S.C. § 924(c) “relating to unlawful possession or use of a firearm during and in
relation to any . . . drug trafficking crime.” Reese does not—nor can he—dispute that he
is serving a sentence for a conviction under that statute. See ECF No. 9 ¶ 3; ECF No. 9-1
at 1. Second, 18 U.S.C. § 3584(c) clearly requires that “[m]ultiple terms of imprisonment
ordered to run consecutively or concurrently shall be treated for administrative purposes as
a single, aggregate term of imprisonment.” 	Taken together, the BOP was correct in
determining that Reese’s multiple terms of imprisonment are to be treated as a “single
aggregate sentence,” and that his conviction under 18 U.S.C. § 924(c)(1) for possession of
a firearm in furtherance of a drug trafficking crime therefore renders him “ineligible to earn
FSA credits.” 	Clinkenbeard v. Murdock, No. 24-3127, 2025 WL 926451, at *1 (8th Cir.
Mar. 27, 2025); see Sok v. Eischen, No. 23-1025, 2023 WL 5282709, at *1 (8th Cir.
Aug. 17, 2023) (“[T]he district court did not err in denying Sok’s petition, as the BOP
correctly treated his prison terms as a single aggregated sentence . . . and therefore properly
denied him FSA credits.”); see also Giovinco v. Pullen, 118 F.4th 527, 533, 533 n.4 (2d Cir.
2024) (noting that “every other circuit court to have considered the question” agrees with
this conclusion and collecting cases).
Reese further asserts that the Supreme Court’s decision in Loper Bright Enterprises
v. Raimondo, 603 U.S. 369 (2024), compels a different result, see ECF No. 26 at 5, but that
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argument is unavailing. 	It is true that, under Loper Bright, courts “must exercise their
independent judgment in deciding whether an agency has acted within its statutory
authority” and may not “defer to an agency interpretation of the law simply because a
statute is ambiguous.” 	603 U.S. at 412–13. 	But, again, there is no ambiguity to resolve
here, and in any event, Loper Bright does not stand for the proposition that an agency
interpretation accepted by the courts under the Chevron framework3—which Loper Bright
overruled—is inherently incorrect. See Loper Bright, 603 U.S. at 412 (“[W]e do not call
into question prior cases that relied on the Chevron framework.”). In fact, Clinkenbeard,
which affirmed the denial of a habeas petition based on facts and claims that are nearly
identical to those presented by Reese, was decided by the Eighth Circuit after Loper Bright.
See Clinkenbeard, 2025 WL 926451, at *1.
For these reasons, Reese’s objections are overruled.
II. 	Fifth Amendment Due Process
The R&R also concludes that the BOP’s determination does not violate the Fifth
Amendment’s Due Process Clause because “there is no constitutionally protected liberty
interest in the opportunity to earn FTCs.” ECF No. 23 at 5. Reese objects to this conclusion
on the basis that “the absence of a liberty [interest]” does not “bar[] a Fifth Amendment
due-process challenge to the imposition or continuation of federal criminal consequences.”
ECF No. 26 at 6. 	But “the constitutional right to due process is only implicated if a
‘deprivation[] of life, liberty or property . . . is at stake,’” 	United States v. Johnson, 703
3 	See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
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F.3d 464, 469 (8th Cir. 2013) (alteration in original) (quoting Wilkinson v. Austin, 545 U.S.
209, 221 (2005)). Reese does not argue that he has been deprived of life or property, and
decisions in this District have consistently rejected the argument that a federal prisoner has
a protected liberty interest in the opportunity to earn FTCs. 	See, e.g., Vang v. Rardin,
No. 24-cv-2690 (DSD/EMB), 2025 WL 2880212, at *2 (D. Minn. Sept. 22, 2025), report
and recommendation adopted, 2025 WL 2879445 (D. Minn. Oct. 9, 2025); Davis v.
Warden, FCI Sandstone, No. 24-cv-4174 (JWB/DTS), 2025 WL 3177522, at *3 n.1
(D. Minn. May 20, 2025), report and recommendation adopted, 2025 WL 3020046
(D. Minn. Oct. 29, 2025); Reynolds v. Eischen, No. 24-cv-2956 (LMP/DJF), 2025 WL
1095943, at *7 (D. Minn. Mar. 11, 2025), report and recommendation adopted, 2025 WL
1095067 (D. Minn. Apr. 11, 2025). Reese offers no argument and cites no authority that
persuades the Court to depart from the analysis and conclusions in these and other
decisions, so Reese’s objection based on the R&R’s disposition of his due process claim is
overruled.
CONCLUSION
The Court overrules Reese’s specific objections to the R&R, and the Court finds no
clear error in the remainder of the R&R. See Grinder, 73 F.3d at 795. Accordingly, based
on the foregoing, and on all the files, records, and proceedings in this matter, IT IS
HEREBY ORDERED that:
1. 	Reese’s Objections to the R&R (ECF No. 26) are OVERRULED;
2. 	The R&R (ECF No. 23) is ADOPTED IN FULL;
3. 	Reese’s Petition for a Writ of Habeas Corpus (ECF No. 1) is DENIED; and
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4. 	This matter is DISMISSED WITHOUT PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 2, 2026 	s/ Laura M. Provinzino
Laura M. Provinzino
United States District Judge
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